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Citizens rights undermined by unfair referendum conduct

category national | eu | opinion/analysis author Wednesday September 09, 2009 21:16author by Johnfitz Report this post to the editors

Attorney General asked to end unfair conduct

Referendums modify Irish foundational law and are, in effect, a court and citizens are the jury

This requires, in the interest of fair conduct, criteria such as the following are complied with as in the courts.
There must be
careful, truthful, balanced and clear exposition of the various aspects of the amendment
no preconditioning or intimidation of citizen jurors
adequate opportunity and time for all concerned citizens to evaluate the issues
adequate opportunities for citizen jurors to evaluate the credibility proponents of Yes & No cases etc

The constitutional rights of citizens are undermined by unfair referendum conduct

statement 13/12/88 related to the extradition of Fr Ryan-
" The Taoiseach formally read this morning's statement by Attorney General John Murray into the Dail record, because of what he termed its "unique importance". ....

Mr Haughey said it was well-established law the attorney general was more than just an executive of the State. He had been described in the courts as "the forensic defender of the general public".

It was the Attorney's duty to see that no member of the public was subjected to detrimental treatment. If he formed an opinion a person's constitutional rights might be interfered with, the courts had said he had an obligation to act to ensure the citizen was not deprived of those rights"

To: Mr Paul Gallagher, and Paul Gallagher SC, Attorney General,to 03 Sept. 2009

A chairde

Below sets out my view that the Lisbon Treaty Referendum can not be conducted fairly in present circumstances.

The Supreme Court confirmed in the McKenna and Coughlan cases, which dealt with 2 important aspects of conduct, that fairness is imperative. A review of other equally unfair aspects should have ensued. This referendum should be suspended until appropriate criteria and mechanisms are established to ensure a fair and balanced presentation of the arguments Else, a valid challenge can be taken by the No side if defeated.

Please give this your urgent attention and let me know what action you are taking so I know what further action, if any, I must take.

Thanking you in anticipation, John Fitzgibbon

Referendums that established and modify Irish foundational law are, in effect, the highest court in the land and citizens are the jury
Our other laws must be compatible with it and all citizens and institutions of the state owe allegiance and duties to the State as defined by it. .

This requires, in the interest of fair conduct, criteria such as the following are complied with as in the courts, and that each of us, as citizens, ensures such compliance. That requirement must inform our actions personally and in every function of office we hold.

There must be
careful, truthful, balanced and clear exposition of the various aspects of the amendment(s)
no preconditioning or intimidation of citizen jurors
adequate opportunity and time for all concerned citizens to evaluate the issues
adequate opportunities for citizen jurors to evaluate the credibility of witnesses (proponents of Yes & No cases)
contextual analysis of what the real meaning of the wording might be- e.g. enhancement of? Subsidiarity, Social Europe, Democracy, equality- income gap here and Europe etc growing for 30 years, hundreds of thousands in government defined unacceptable poverty 11 years after National Anti Poverty Strategy 1, 500,000? adults at level 1 literacy and literacy is the basis of success in society. 30,000+ millionaires (omitting value of family home), 40+ on 500,000 a year paying no income tax etc. The farmers threatened a No vote to have their concerns addressed prior to the Lisbon 1 vote and had by the Taoiseach and Commissioner Mandleson. Not those in poverty though- many of them don't vote.
a (judicial) body charged with the role of ensuring fair conduct as in other courts (to ensure relevant criteria are complied with)
The present referendum process falls very short of meeting these requirements and I'd have been to the courts well before now if I could get legal aid or pro bono assistance. I tried, unsuccessfully, several sources prior to Lisbon 1 and all known probable sources on other occasions.

Previous solo forays into the upper courts established beyond doubt, that lay litigants like me have little or no chance of presenting a complex case. None of the many channels asked admitted any responsibility for this grossly unequal treatment of non-rich litigants

The Supreme Court didn't respond to the question put to them as to "whether they believed lay litigants could be expected to process complex cases effectively without legal aid". That seemed to ignore the fact that the great majority would expect the peoples courts, interpreting the peoples constitution to do so in accordance with citizens' legitimate expectations.

Among the several factors that preclude fair process are-

Huge imbalance in the campaigning strength of the sides e.g. Government Ministers & nearly all TDs, paid by the citizens, promoting one side.

A very complex case with the sides giving diametrically opposed views. People who don't understand what they're voting for are being pressurised to vote in ignorance. Because of this many are likely to vote (as in the 2nd Nice referendum) according to the pressure from the Irish and EU political incumbents and the "establishment" generally. Politicians role in referenda is as citizens only and it is illigitimate for them or for their parties to spend money or any state funds in campaigning in referenda or to use their prestigious positions to give undue emphasis to one side.

Both sides, imply the other side is lying. There's little teasing out as in courts, tribunals etc where the truth lies.

The power of the Referendum Commission (in response to the Mckenna judgement- of unfair conduct and later corroborated by the Coughlan case) to gather the arguments of both sides and present them as pre Nice 1 was removed pre Nice 2. Why? The powers of the Commission should have been broadened to be as effective as the powers of the courts to ensure a fair "Trial".

Why was the Treaty made unintelligible (see quotes below) by decision to produce a series of amendments to 2 other treaties rather than making minor amendments to the readable Constitution rejected by France and Holland. The IAEA had a consolidated version available at 120 Euro and Libertas was handing out another version during Lisbon 1. How are those who might read such be supposed to know whether these are accurate? Would they stand up to legal interpretation afterwards
At Government and European level attempts to mislead the electorate seem to have been made- see Lisbon treaty Referendum\Govs to deceive the Irish Voters Mail 140408.doc) and statements below.

WHAT SENIOR EU POLITICIANS SAY ABOUT THE LISBON TREATY (won't be seen or read many voters due to resource deficits- cash, media access, and fulltime workers on the No side!
"They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister - imagine the UK Prime Minister - can go to the Commons and say 'Look, you see, it's absolutely unreadable, it's the typical Brussels treaty, nothing new, no need for a referendum.' Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new."
- Giuliano Amato, former Italian Prime Minister and Vice-Chairman of the Convention which drew up the EU Constitution, recorded by Open Europe, The Centre for European Reform, London, 12 July 2007
- the Treaty which would give the EU a Federal Constitution indirectly rather than directly and turn us all into real EU citizens for the first time
"France was just ahead of all the other countries in voting No. It would happen in all Member States if they have a referendum. There is a cleavage between people and governments... A referendum now would bring Europe into danger. There will be no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK."
- French President Nicolas Sarkozy, at meeting of MEPs, EUobserver, 14 November 2007
"The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content ... The proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through the old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary ... But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention."
- V.Giscard D'Estaing, former French President and Chairman of the Convention which drew up the EU Constitution, The Independent, London, 30 October 2007
"I think it's a bit upsetting... to see so many countries running away from giving their people an opportunity,' Irish prime minister Bertie Ahern said on Sunday 21 October, according to the Irish Independent. 'If you believe in something ...why not let your people have a say in it? I think the Irish people should take the opportunity to show the rest of Europe that they believe in the cause, and perhaps others shouldn't be so afraid of it,' he added. "
- Irish Taoiseach Bertie Ahern, EU Observer, Brussels, 22 October 2007
"Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly ... All the earlier proposals will be in the new text, but will be hidden and disguised in some way."
- V.Giscard D'Estaing, Le Monde, 14 June 2007, and Sunday Telegraph, 1 July 2007
" The most striklng change (between the EU Constitution in its older and newer version ) is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and simpler treaty containing all the provisions governing the Union has now been dropped in favour of a huge series of individual amendments to two existing treaties. Virtual incomprehensibilty has thus replaced simplicity as the key approach to EU reform. As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum."
- Dr Garret FitzGerald, former Irish Taoiseach, Irish Times, 30 June 2007
"The substance of the constitution is preserved. That is a fact."
- German Chancellor Angela Merkel, speech in the European Parliament, 27 June 2007
"The good thing is that all the symbolic elements are gone, and that which really matters - the core - is left."
- Anders Fogh Rasmussen, Danish Prime Minister, Jyllands-Posten, 25 June 2007
"The substance of what was agreed in 2004 has been retained. What is gone is the term 'constitution' ".
- Dermot Ahern, Irish Foreign Minister, Daily Mail Ireland, 25 June 2007
"90 per cent of it is still there...These changes haven't made any dramatic change to the substance of what was agreed back in 2004."
- Irish Taoiseach Bertie Ahern, Irish Independent, 24 June 2007
"The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable ... The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success."
- Karel de Gucht, Belgian Foreign Minister, Flandreinfo, 23 June 2007
"The good thing about not calling it a Constitution is that no one can ask for a referendum on it."
-Giuliano Amato, speech at London School of Econmics, 21 February 2007
"Sometimes I like to compare the EU as a creation to the organisation of empires. We have the dimension of empire but there is a great difference. Empires were usually made with force with a centre imposing diktat, a will on the others. Now what we have is the first non-imperial empire."
- Commission President J-M Barroso, The Brussels Journal, 11 July 2007

Will the European Parliament respect the decision of the Irish electorate? Not if the vote below in an indicator!

In February 2008 the European Parliament voted by nearly 4 to 1, to reject an amendment to a report on the Lisbon Treaty stating that ムThe European Parliament undertakes to respect the outcome of the referendum in Ireland'.
Dublin MEP, Proinsias De Rossa came under strong attack at the National Forum on Europe in Dublin Castle today for his failure earlier this year to support the Irish people's decision in the forthcoming referendum on the Lisbon Treaty.

Groups campaigning for a No vote challenged Mr De Rossa to explain his decision to vote against a proposal calling for respect of the outcome of the Irish referendum. In February this year 2008 the European Parliament voted by a huge majority 499 to 129 MEPs, including Proinsias De Rossa to reject an amendment to a report on the Lisbon Treaty stating that 'The European Parliament undertakes to respect the outcome of the referendum in Ireland'.

The former Green Party MEP Patricia McKenna said today, "As a member of the European Parliament for ten years I was shocked that so many MEPs voted to ignore the outcome of the Irish referendum. It demonstrated a gross disrespect for democracy and was a slap in the face to the people who elected Mr De Rossa to the European Parliament. The excuses given by Mr De Rossa are illogical and don't stand up to scrutiny.

McKenna said “Voting to ignore the outcome of the Irish referendum displays a total disregard for the principles of democracy and the democratic process itself and is one of the best examples yet of how democracy and the rights of EU citizens are being ignored in order to facilitate the agenda of the powerful elite in Europe. I find it frightening that members of the European Parliament who are elected by the people to serve the people voted to ignore the fundamental rights of those same people.

It is ironic, that most supports of the Lisbon Treaty are using the Charter of Fundamental Rights as justification for supporting the treaty, however, those very same people are willing to trample one of the most basic fundamental rights of citizens into the ground in order to get their own way. The right to a free and fair vote and the right to have your vote respected are paramount to any so-called democracy.

Mr De Rossa's vote demonstrates the growing contempt within EU institutions for basic democratic principles and is clear proof that voting Yes to the Lisbon Treaty will not strengthen but in fact weaken European democracy.” [ENDS]

For further Information: Patricia McKenna 087 2427049 Frank Keoghan 087 2308330

I have given an indication of the extent of the Yes campaign in the 2nd attachment Referenda Lisbon treaty powerful Yes groups.doc

The BCI Lisbon Treaty broadcast guidelines at state
"The Guidelines come into effect once the date for the Referendum is formally announced and remain in place until the close of polling stations on the day of the Referendum".
Comment Prior to the guidelines coming into effect, those with status and access to the media including journalists, media commentators, politicians, IBEC etc etc have opportunities to present their case and garner a percentage of the vote, possibly even the winning margin. The guidelines should be implemented at least 6 months prior to the vote
"A referendum is an important public event and clearly falls within the area of news and current affairs. Any coverage of events and issues relating to the Referendum and related constitutional amendments should be fair, impartial and objective and without any expression of the broadcaster's own views."
Comment broadcaster's own views are expressed sometimes prejudicially in the pre guidelines phase of campaigns.
"Broadcasters choosing to provide coverage of the Referendum and related constitutional amendments must develop mechanisms that are open, transparent and fair to all interested parties. These mechanisms should be considered and developed at an early stage and information on the approach being adopted should be available to all interested parties in advance. "

The appropriate guidelines above (in the all too limited timespan they are in effect) should also apply to other media and to effective campaigning by politicians during and prior to the official campaign start date.

I wrote to the Referendum Commission at some length on May 27th (RefCom Lisbon conduct flawed 270508.doc) concluding that-

"On the basis that the same principles, that validated the McKenna and Coughlan judgments, apply to other factors that are contributing to unfair conduct and probably invalid outcomes, I believe the Commission should consider its position. The credibility it gives, particularly by being chaired by an eminent high court judge, to the constitutionally invalid referendum process is, I believe, untenable".

Finally I'm requesting you to take appropriate action to ensure principles of fairness and justice are upheld by postponing the pending Referendum on the Lisbon Treaty, or at least the count until fair procedures and adequate monitoring etc are in place. If proceeded with now, the outcome, whatever it be, must be challenged to establish in law what is evident to any close observer of the process on this and other occasions.

Thank you in anticipation of your attention to my deep concerns on these issues

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